Thursday, May 5, 2016

In 1966, in the 5-4 decision of Miranda v. Arizona, the Warren Court fleshed out the Fifth Amendment by requiring warnings to be given before a defendant in custody could be questioned:

“You have the right to remain silent, anything you say can be used against you in a court of law, you have the right to an attorney, and that if you can’t afford one a lawyer will be appointed for you before questioning.”

Miranda is still vital. In the 12 years that I’ve been on the Ohio Supreme Court, we’ve cited Miranda over 275 times. The case comes up whenever statements have been made in a criminal case or someone’s questioned in custody without counsel. Judges see it in motions to suppress.

For the Ohio Supreme Court’s most recent pronouncement, read State v. Barker, released on April 28, 2016. Just because a juvenile was videotaped, we couldn’t say his confession was automatically voluntary. We held this statutory presumption to be unconstitutional and said that the prosecution must always prove a knowing, intelligent, and voluntary waiver before allowing a statement into evidence.

I would like to broaden the Law Day Theme to include another protection of words. Miranda is based on the Fifth Amendment protection against self-incrimination, meaning the government can’t force speech. Conversely the government usually can’t shut us up, either. The First Amendment doesn’t allow government to squelch the language of a speaker, no matter how coarse, offensive, or repulsive.

The right is relevant during this campaign season. Americans have never been polite political animals. Insults aren’t new. The raw nerves of democracy have been jangling away years ago.

Campaigns of 19th Century

In 1800, John Adams challenged by his vice president, Thomas Jefferson, was called a "hideous hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman." Jefferson was called a “weakling, atheist, libertine, and coward” and there were rumors of his long-term liaison with Sally Hemings.

John Quincy Adams and Andrew Jackson faced off twice with the first election considered by Jackson’s followers to be a “corrupt bargain” because candidate Henry Clay threw his support to Adams in exchange for the position of Secretary of State.

Their second race in 1828 was ugly. A newspaper wrote “General Jackson’s mother was a common prostitute, brought to this country by British soldiers!” Rumors swirled that Jackson’s wife Rachael was a bigamist because her divorce had not gone through when she married Jackson. Jackson was accused of adultery and living in sin. Adams was labelled a pimp, and it was said his success in Russia was a result of his providing the Czar with the services of an America woman. He was also accused of gambling in the White House.

Jackson won, but his wife died shortly before his inauguration. Denied a second term, Adams later became a congressman and successfully defended 39 African captives in the famous Amistad case.

In 1884,Grover Cleveland dealt with the revelation that he had fathered a son out of wedlock, that the child had gone to an orphanage, and that the mother had been driven into an asylum. Even though Cleveland eventually admitted his “illicit connection” he denied fatherhood – he said he was only doing his duty in finding a home for the child and giving him his name.

Current Speech Protection

Justice Oliver Wendell Holmes wrote “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Is the “marketplace of ideas” still a valid idea?

If so, unfortunately, some of the internet’s bread is very stale and some twitter fruit is very rotten. Just look at internet comments – common civility is gone.Ugly thoughts that may have been hidden away once now have permission to be belched out in public. And those who disagree are crudely insulted and demonized.

When did it happen that anger, grievance, and resentment of others would drown out rational discussion?

The anti-intellectual soundbite needs to be challenged. So does the idea that any opinion, no matter how outright wrong, is just as valid as a considered judgment based in fact. And as the U.S. Supreme Court said in Citizens United, “Government can’t police the line between truth and falsity and between valuable speech and drivel.” Since government can’t distinguish based on content of political speech, who can change the tenor of discourse? Isn’t it our duty to try to encourage free exchange of ideas uninhibited by hate or rage?

We hear “It’s a free country,” and thank God that’s so. Law Day is a time to celebrate protection of “more than words” – the Miranda decision protects silence of one while in custody and the First Amendment protects our ability to speak.